Search and Seizure Issues in Code Enforcement

Introduction

In the course of your duties as a government inspector,
your powers are substantially limited by constitutional principles which
govern most of your conduct. The Fourth Amendment to the United States
Constitution prohibits you from engaging in "unreasonable" searches and
seizures. The Fifth Amendment prohibits the government from denying any
citizen of "life, liberty or property without due process of law." The
Sixth Amendment guarantees defendants in a criminal case certain rights,
among them to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of counsel
for his defense. The Fourteenth Amendment prohibits you from denying any
citizen of liberty or property without "due process of law," which basically
means you cannot deprive citizens of any rights guaranteed by the Fourth,
Fifth or Sixth Amendments. The purpose of this course is to make you aware
of these rights that all citizens have and to carry out your duties within
this Constitutional framework.

THE RULES

Fourth Amendment

The Fourth Amendment provides:

The right of the people to be secure in their persons, house, papers
and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized. U.S. Const. Amend. IV.

Fifth Amendment

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand jury. . . nor shall
any person be subject for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case to be a witness
against himself; nor be deprived of life, liberty or property, without
due process of law. U.S. Const. Amend. V

Sixth Amendment

The Sixth Amendment Provides:

In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defense. U.S. Const. Amend. VI

Fourteenth Amendment

The Fourteenth Amendment provides, in relevant part:

"....nor shall any state deprive any person of life, liberty, or property,
without due process of law." U.S. Const. Amend. XIV.

Kansas Constitution

The right of the people to be secure in their person and property
against unreasonable searches and seizures, shall be inviolate; and no
warrant shall issue but on probable cause, supported by oath or affirmation,
particularly describing the place to be searched and the persons or property
to be seized. Kansas Bill of Rights, § 15

Notice the similarity of language in Fourth Amendment
and Kansas Bill of Rights § 15. Unlike some states which have found
additional protections or rights under their state constitution, the Kansas
Supreme Court has so far found the protections under the Kansas Constitution
the same as those under the United States Constitution. State v. Johnson,
253 Kan. 356, 362, 856 P.2d 134 (1993) ("[T]he wording and scope of the
two sections are identical for all practical purposes. If conduct is prohibited
by one it is prohibited by the other."); State v. Schultz, 252 Kan.
819, 824, 850 P.2d 818 (1993); State v. Ninci, 262 Kan. 21, 29-30,
936 P.2d 1364 (1997).

"We agree that the district court has jurisdiction and authority
to issue an administrative search warrant. However, we disagree with the
Court of Appeals that K.S.A.1994 Supp. 22-2502 is applicable to the issuance
of an administrative search warrant. We specifically disapprove of the
language 'Under the provisions of K.S.A.1994 Supp. 22-2502,' in Syl. ¶
6 of the Court of Appeals opinion and the corresponding language in the
body of the opinion." 258 Kan. at 687, 907 P.2d 885.

APPLICATION OF THE RULES

I. Governmental Conduct

The Fourth Amendment proscribes only governmental
action; it is wholly inapplicable to a search or seizure by a private individual
not acting as an agent of the government or with the participation or knowledge
of any governmental official." Burdeau v. McDowell, 256 U.S. 465,
475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); State v. Miesbauer, 232
Kan. 291, 293, 654 P.2d 934 (1982).

If you are employed by a government and part of your
duties include inspections, the Fourth Amendment applies. However, if an
inspection or search is wholly unconnected with your job, you will be acting
as a private citizen rather than a government employee. See State v.
Smith, 243 Kan. 715, 724, 763 P.2d 632 (1988), where the court held
that a Wildlife and Parks employee, whose job it was to empty trash cans,
trespassed but did not conduct a Fourth Amendment search when he entered
the gift shop and its adjoining residence in search of a water line leak
and found marijuana as well.

Housing Inspectors are subject to the Fourth Amendment.

"In summary, we hold that administrative searches of the kind
at issue here are significant intrusions upon the interests protected by
the Fourth Amendment, that such searches when authorized and conducted
without a warrant procedure lack the traditional safeguards which the Fourth
Amendment guarantees to the individual, and that the reasons put forth
in Frank v. State of Maryland and in other cases for upholding these
warrantless searches are insufficient to justify so substantial a weakening
of the Fourth Amendment's protections." Camera v. Municipal Court of
City and County of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727
18 L.Ed.2d 930 (1967). Followed in Board of County Commissioners of
Johnson County v. Grant, 264 Kan. 58, 954 P.2d 695 (1998). See also
See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d
943 (1967).

The extent of the involvement is the crucial element.
If the involvement is too great, the private individual's role may be reduced
to that of an agent of the government. State v. Bohannon, 3 Kan.
App.2d 448, 452, 596 P.2d 190, 194 (1979). Factors include: (1) Whether
the government knew and acquiesced in the intrusive conduct, and (2) whether
the party performing the search intended to assist law enforcement efforts
or to further his own ends. Pleasant v. Lovell, 876 F.2d 787, 797
(10th Cir. 1989); State v. Smith, 243 Kan. 715, 724, 763 P.2d 632
(1988). These inquiries are viewed in light of all the facts and circumstances
of the case. Coolidge v. New Hampshire, 403 U.S. 443, 489, 91 S.
Ct. 2022, 29 L. Ed. 2d 564 (1971).

A "search" occurs when an expectation of privacy
that society is prepared to consider reasonable is infringed. Jacobsen,
466 U.S. at 113; State v. Daly, 14 Kan.App.2d 310, Syl. ¶ 5,
789 P.2d 1203, rev. denied 246 Kan. 769 (1990). In Artes-Roy
v. City of Aspen, 31 F.3d 958, (10th Cir. 1994), the court held an
inspector, even assuming that he pushed open door to § 1983 plaintiff's
home and stepped into entryway without any proper consent, did not violate
Fourth Amendment, particularly as he did not enter for either "search"
or "seizure," but rather, entered in effort to stop workmen from continuing
work which inspector believed violated stop work order, and in any event,
any Fourth Amendment violation was de minimis.

A "seizure" (of property) occurs when there is some
meaningful interference with an individual's possessory interests in that
property. Jacobsen, 466 U.S. at 113; Brooks v. Sauceda, 85
F.Supp.2d 1115 (D. Kan. 2000); Daly, 14 Kan.App.2d at 310, Syl.
¶ 5. It is NOT relevant what the government actor thought --
only what actor said and did - the test is objective, not
subjective. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382,
115 L.Ed.2d 389(1991).

The Fourth Amendment protects property interests
even in situations where neither privacy nor liberty is at stake. Thus
in Soldal v. Cook Co., 506 U.S. 56, 72, 113 S. Ct. 538, 121 L.Ed.2d
450 (1992), the Court held that the police action of physically tearing
a mobile home from its lot and towing it to another location constituted
a "seizure" of the property within the meaning of the Fourth Amendment.
"As a result of the state action in this case, the Soldals' domicile was
not only seized, it literally was carried away, giving new meaning to the
term 'mobile home.'" 506 U.S. at 61.

Subjective Expectation of Privacy

"What a person knowingly exposes to the public, even in his own home
or office, is not subject to Fourth Amendment protection." Katz v. United
States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Governmental
intrusion on an undeveloped area outside of the curtilage of a dwelling
does not violate the reasonable expectation of privacy of the landowner.
Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d
214 (1984).

Curtilage

Fenced backyards and areas in close proximity to
the home are normally considered within the curtilage. These areas are
treated as the home itself for Fourth Amendment purposes. Dunn,
480 U.S. at 300; United States v. Swepston, 987 F.2d 1510, 1513
(10th Cir. 1993); State v. Basurto, 15 Kan.App.2d 264,
807 P.2d 162, aff'd 249 Kan. 584 (1991).

The curtilage is protected just as a home because
it is an area "to which extends the intimate activity associated with the
'sanctity of a man's home and the privacies of life.' " Dunn, 480
U.S. at 300 (quoting Boyd v. United States, 116 U.S. 616, 630, 6
S.Ct. 524, 29 L.Ed. 746 (1886)).

There is lesser expectation
of privacy in common areas of apartment buildings, and the nature of the
buildings "creates a gray area regarding what constitutes curtilage, making
it difficult to establish that defendants knew or should have known that
their entry onto the properties violated the Fourth Amendment." However,
opening a gate upon which a tenant had placed a no trespassing sign, and
entering the tenant's enclosed garden area without a warrantclearly violated
the tenant's rights and defendants knew or should have known it was illegal.
Watson v. City of Kansas City, Kan., 80 F.Supp. 1175, 1194 (D.Kan.
1999).

The question of whether an area is an open field or curtilage turns
on:

(1) the proximity of the area claimed to be curtilage to the home;
(2) whether the claimed area is within an enclosure surrounding the
home;
(3) the uses to which the area is put, and
(4) the steps taken to protect the area from observation by people
passing by. Dicesare v. Stout, 992 F.2d 1222 (10th Cir.
1993) (unpublished) (quotingUnited States v. Dunn, 480 U.S.
294, 300, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987)).

In State v. Waldschmidt, 12 Kan.App.2d 284,
740 P.2d 617, rev. denied 242 Kan. 905 (1987), the Kansas Court
of Appeals held that a fenced back yard was within the curtilage. In that
case, the court noted the yard was behind and immediately adjacent to the
residence and was surrounded by a six-foot high wooden privacy fence which
obstructed the view of the yard. The court found the fence was of the type
used for intimate family activities and by erecting it, the defendant exhibited
a subjective expectation of privacy that society will protect as reasonable.
Thus, when a law enforcement officer scaled the fence, placed his arm and
flashlight over the fence, and observed marijuana plants, the court suppressed
the plants as the product of an unconstitutional warrantless search. 12
Kan.App.2d at 286, 290.

In State v. Mitchell, 8 Kan.App.2d 265, 655
P.2d 140 (1982), defendant's residence was located one-eighth of a mile
from a public road, along a private driveway. The house and yard were enclosed
in part by a decorative stone wall 3 to 3 ½ feet high with a wire
gate permitting access. The day after a murder on the property, an officer
entered the yard through the wire gate and found a spent shell casing near
the house. The defendant, the wife of the murder victim, moved to suppress
the shell casing as the product of an unconstitutional search. The court
granted the motion, and the court of appeals affirmed, finding the warrantless
search of the curtilage was unreasonable under the Fourth Amendment. The
court noted that the seriousness of a homicide investigation alone does
not create exigent circumstances sufficient to justify a warrantless search
of a constitutionally protected area. See also Flippo
v. West Virginia, 528 U.S. ___, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999)
(per curium)(there is no "crime scene" exception to the Fourth Amendment;
once scene is secure police should obtain a warrant).

The existence or non-existence of a lock on a gate
does not appear to be determinative. In Mitchell, for example, the
court quoted a passage from 68 Am. Jur. 2d, Searches and Seizures
§ 20, which stated that a person who surrounds his backyard with a
fence "'and limits entry with a gate, locked or unlocked, has shown
a reasonable expectation of privacy for the area, and it is protected from
unreasonable search and seizure by the Fourth Amendment.'" (Emphasis added).
Mitchell, 8 Kan.App.2d at 268.

Special Applications

Abandoned Property

Police obtaining trash from bag deposited outside
curtilage for collection is not a Fourth Amendment "search." There is no
reasonable expectation of privacy when property is abandoned and left "'in
an area particularly suited for public inspection and, in a manner of speaking,
public consumption, for the express purpose of having strangers take it.'"
California v. Greenwood, 486 U.S. 35,
40-41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). See also United States
v. Long, 176 F.3d 1304, 1308 (10th Cir. 1999)(motion to
suppress denied where TPD officers retrieved garbage bags from atop a trailer
parked near a garage); State v. Kimberlin, 267 Kan. 659, 663-64,
984 P.2d 141 (1999)(warrantless seizure of discarded trash, located 5-8
feet from the street and 35 to 40 feet from the house was not unreasonable);
State v. Alexander, 26 Kan.App.2d 192,200, 981 P.2d 761
(1999)(seizure of items located in a push-cart dumpster located 1-2 feet
from the street was not unreasonable).

United States v. McRae, 153 F.3d
708 (6th Cir. 1998). A defendant convicted of drug and weapons
possession had no legitimate expectation of privacy in a vacant house where
he resided for a week but neither leased nor owned.

Vehicle Identification Numbers

There is no expectation
of privacy in vehicle identification numbers. Thus, officer's action in
reaching into interior of defendant's automobile to remove from dashboard
certain papers obscuring the vehicle identification number was a search
but was sufficiently unintrusive to be constitutionally permissible. New
York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986).

Administrative Area Searches conducted
pursuant to Established Standards and an Established Plan or Scheme

Having concluded that the area
inspection is a 'reasonable' search of private property within the meaning
of the Fourth Amendment, it is obvious that 'probable cause' to issue a
warrant to inspect must exist if reasonable legislative or administrative
standards for conducting an area inspection are satisfied with respect
to a particular dwelling. Such standards, which will vary with the municipal
program being enforced, may be based upon the passage of time, the nature
of the building (e.g., a multifamily apartment house), or the condition
of the entire area, but they will not necessarily depend upon specific
knowledge of the condition of the particular dwelling. Camera v. Municipal
Court of City and County of San Francisco, 387 U.S. at 528-29.

Although a reasonable area
inspection plan may substitute for probable cause and allow for issuance
of a warrant, courts will examine reasonableness and balance the public
and private interests involved. Board of County Commissioners
of Johnson County v. Grant, 264 Kan. 58, 64, 954 P.2d 695 (1998). If
inspection program gives reasonable notice of reasonable inspections, it
will likely pass muster even if it does not specificallyset forth
the frequency, scope and manner of the inspections. Id.
The fact that criminal penalties may eventually exist for failure to comply
with city codes does not preclude the issuance of an administrative search
warrant. Id. at 67.

Teaming up with community
police officers in a "code team" approach is not always a good idea. When
law enforcement officers use the less onerous inspection program as a pretext
to enter houses for warrantless narcotics searches, the officers are not
entitled to qualified immunity in suits for damages. Jones v. City of
Youngstown, 980 F.Supp. 908, 915 (N.D. Ohio) (1997)("Defendant officers
cannot insulate their Constitutional improprieties under the cloak of departmental
cooperation.") See also Board of County Commissioners
of Johnson County v. Grant, 264 Kan. 58, 62, 954 P.2d 695 (1998)(noting
Camera court found administrative searches reasonably partly because
inspections are neither personal nor aimed
at the discovery of evidence of crime).

III. Will Society Protect The Expectation of
Privacy As Reasonable?

These are court-imposed rules which define the outer
contours of Fourth Amendment Rights. Fourth Amendment rights are personal.
Thus, unless the individual possesses a personal interest in the item or
place searched or items seized, he cannot claim Fourth Amendment protection.

A passenger in an auto that he neither owned nor
leased was held unable to challenge the government's seizure of a shotgun
and shells from the interior of the car. The court held that passenger
had no legitimate expectation of privacy in the places searched (glove
compartment and under the seat); nor did he claim ownership of the goods.
Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387
(1979).

Search of an airplane abandoned on an airport runway
by the defendant did not invade any expectation of privacy when the defendant
claimed no ownership interest in the airplane. State v. Gardner,
10 Kan.App.2d 409 (1985). Society will not protect a defendant's claimed
right to privacy to the contents of a trash incinerator located on property
defendant's neither owned nor had an interest in. State v. Grimmett,
208 Kan. 324, 326, 491 P.2d 549 (1971).

A "friend" of one Ms. Cox deposited money in her
purse; the friend was held not to possess a reasonable expectation of privacy
in the purse sufficient to contest the government's search of the handbag.
The defendant had know the woman for only a few days had never before received
permission to place any item in the purse. Even though the defendant owned
the drugs, he could not contest the intrusion into the purse that led to
their discovery. Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct.
2556 65 L.Ed.2d 633 (1980).

An overnight guest in another person's residence
has a reasonable expectation of privacy sufficient to allow that person
to challenge a police entry of the premises. It does not matter whether
the guest does or does not have a key, or whether the owner/possessor has
left the guest in charge. Minnesota v. Olson, 495 U.S. 91, 100,
110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

IV. WAS A WARRANT ISSUED?

[S]earches conducted outside the judicial process, without
prior approval by a judge or magistrate, are per se unreasonable
under the Fourth Amendment -- subject only to a few specifically established
and well-delineated exceptions. Katz v. United States, 389 U.S.
at 357.

Warrantless entry into fenced area to see VINs on
nuisance vehicles in preparation of towing them violated the owner's Fourth
Amendment rights. Connor v. City of Santa Ana, 987 F.2d 1487 (9th
Cir. 1980).

Warrantless entry onto property despite owner's protestations
was clearly illegal. Although court declined to issue an injunction (plaintiff's
did not request damages), it took the Wyandotte County Unified Government
to task for practice of inspecting properties without consent when owners
were not home, and found code standards insufficient to establish probable
cause to obtain a warrant. Pearson v. City of Kansas City, Kansas,
(Wyandotte County District Court Case No. 97-C-3310, filed April 28, 1999).

Open fields. "[A]n individual has no expectation that open fields
will remain free from warrantless intrusion by government officers." Oliver
v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214
(1984). See alsoHester, 265 U.S. at 58; Dunn, 480
U.S. at 300; State v. Tinsley, 16 Kan. App. 2d 289, 823 P.2d 205
(1991)(marijuana growing in area 45 to 70 feet from house near a cattle
shed); Dow Chemical v. United States, 476 U.S. 227, 104 S.Ct. 1735,
80 L.Ed.2d 214 (1986)(no expectation of privacy from aerial surveillance
& photography of smokestack emissions); United States v. Knotts,
460 U.S. 276, 281-82, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1983)(person traveling
on public roads has no reasonable expectation of privacy from observation
of his movements).

Plain view. No legitimate expectation of privacy exists in property
exposed to official observation.

It has long been settled that
objects falling in the plain view of an officer who has a right to be in
the position to have that view are subject to seizure and may be introduced
in evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct.
992, 19 L.Ed.2d 1067 (1968).

Two varieties of plain
view seizures are possible: (1) an item exposed to view in a public place
may be seized without involving any search activity; or (2) an item may
be seen in plain view during the course of other lawful search or-seizure
activity (such as during service of a search warrant, or while requesting
consent to search). In either case, the seizure of the property
in plain view "involves no invasion of privacy and is presumptively reasonable,
assuming that there is probable cause to associate the property with criminal
activity." Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371,
63 L.Ed.2d 639 (1980)(Emphasis added). See, especially,
Texas v. Brown,
460 U.S. 730, 738, n. 4, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)("'plain
view' provides grounds for seizure of an item when an officer's access
to an object has some prior justification under the Fourth Amendment.");
Arizona v. Hicks, 480 U.S. 321, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1987)(no
seizure by recording serial numbers from stereos, but moving equipment
to see numbers was a seizure).

The use of optical aids,
such as flashlights, searchlights or binoculars, do not affect the legality
of observing in plain view what could lawfully be seen in daylight or at
closer range. Texas v. Brown, 460 U.S. at 739-740 (flashlight);
State v. Epperson, 237 Kan. 707, 714, 703 P.2d 761, (1985)(same);
On Lee v. United States, 343 U.S. 747, 754, 72 S.Ct. 967, 96 L.Ed.
1270 (1952)(radio transmitter & receiver); United States v. Lee,
274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927)(searchlight).

Warrant Exceptions

Although there are a variety of exceptions
to the warrant requirement, only a few of them likely apply in the code
enforcement context. Therefore, the following discussion focuses on the
most applicable exceptions to the warrant requirement.

Consent.

In situations where
the police have some evidence of illicit activity, but lack probable cause
to arrest or search, a search authorized by a valid consent may be the
only means of obtaining important and reliable evidence. A search pursuant
to consent may result in considerably less inconvenience for the subject
of the search, and, properly conducted, is a constitutionally permissible
and wholly legitimate aspect of effective police activity. Schneckloth
v. Bustamonte, 412 U.S. 218, 227-228; 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973). In the absence of any other justification (or inaddition
to other grounds, as a precautionary "independent source"), consent to
an entry or other search or seizure activity makes the activity reasonable:
A search to which an individual consents meets Fourth Amendment requirements.
Katz, 389 U.S. at 358 & n. 22.

Without probable cause
or a warrant, the police can search when they have voluntary consent from
the individual. The consent must in fact be voluntary and not the result
of duress or coercion express or implied. Schneckloth v. Bustamonte,
412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v.
Pearson, 234 Kan. 906, 631 P.2d 605 (1984).

Preferred exception for administrative
searches

Moreover, most citizens allow
inspections of their property without a warrant. Thus, as a practical matter
and in light of the Fourth Amendment's requirement that a warrant specify
the property to be searched, it seems likely that warrants should normally
be sought only after entry is refused unless there has been a citizen complaint
or there is other satisfactory reason for securing immediate entry. Camera
v. Municipal Court of City and County of San Francisco, 387 U.S. 523,
539-40, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Standard: "Totality of the Circumstances"

Voluntariness is a question to be determined
from all the circumstances. Schneckloth, 412 U.S. at 225-26.

Considerations:

No single factor is dispositive. Schneckloth
412 U.S. at 225-26.

Knowledge of the right to refuse

There is no requirement
that an individual be advised of any right to refuse consent; failure to
advise is a consideration, but not dispositive on the issue of voluntariness.
Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d
347(1996); Schneckloth, at 234.

Consent to search areas
open to the public can be required as a condition to obtaining a business
license. See Moody v. Board of County Com'rs, 237 Kan. 67, 77, 697
P.2d 1310 (1985). However, warrantless inspections of commercial property
may be constitutionally objectionable if their occurrence is so random,
infrequent, or unpredictable that the owner, for all practical purposes,
has no real expectation that his property will from time to time be inspected
by government officials. Marshall v. Barlow's, Inc., 436 U.S. 307,
323, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

Scope of Consent

The scope of search under consent is generally
limited by the consent, as to time, place and duration.

A police officer who
has obtained a suspect's general consent to search his vehicle for certain
items does not violate the Fourth Amendment by opening closed containers
found within the vehicle that might reasonably hold the object of the search.
Florida v. Jimeno, 500 U.S. 248, 249, 111 S.Ct. 1801, 114 L.Ed.2d
297 (1991).

The mere fact that the
person giving consent is intoxicated, under the influence of drugs or otherwise
mentally agitated does not necessarily make consent involuntary. Consent
to search empty glove box was voluntary even though defendant was intoxicated
because defendant seemed mentally aware, answered questions addressed to
him, produced driver's license, and denied consent to search the trunk
which contained cocaine. United States v. Gay, 774 F2d. 368, 377
(10th Cir. 1985).

Length of detention and nature of questioning.Schneckloth, 412 U.S. at 225-26.

Use of physical punishment or other
coercive behavior.Schneckloth, 412 U.S. at 225-26. Consent
is involuntary if the officer misleads the person by stating that a warrant
has already issued or its issuance is assured. Bumper v. North Carolina,
391 U.S. 543, 550 & n. 14, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). A
threat to seek a warrant if consent is not given would not render
consent involuntary, since such threat necessarily implies that a refusal
to consent will be respected.

PLAIN VIEW

Although the "plain
view doctrine" technically means that no Fourth Amendment search occurred,
the doctrine is often described as an exception to the warrant requirement.
Under the plain view doctrine, if police are lawfully in a position from
which they view an object, if its incriminating character is immediately
apparent, and if the officers have a lawful right of access to the object,
they may seize it without a warrant. Horton v. California,
495 U.S. 128, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990);
State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998);
State v.
Galloway, 232 Kan. 87, 652 P.2d 673 (1982).

It has long been settled
that objects falling in the plain view of an officer who has a right to
be in the position to have that view are subject to seizure and may be
introduced in evidence. Harris v. United States, 390 U.S. 234, 236,
88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

Exigent Circumstances Or Hot Pursuit

Exigent circumstances
are those which require immediate action. In some cases, the urgency of
a situation and the need to take immediate warrantless action will render
official conduct "reasonable" under the Fourth Amendment. Such exigencies
may justify searches or seizures of persons, vehicles and other property,
though they may be used most often to justify a warrantless entry into
a home. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642,
68 L.Ed.2d 38 (1981). Although some immediate health hazard may rise to
the level of exigent circumstances, this exception will not normally apply
in a code enforcement context.

For example, the need
to protect life or avoid serious injury is an exigent circumstance. Johnson,
253 Kan. at 369. "An entry may be justified by hot pursuit of a fleeing
felon, the imminent destruction of evidence, the need to prevent a suspect's
escape, or the risk of danger to the police or others." Minnesota v.
Olson, 495 U.S. 91, 100-101, 110 S.Ct. 1684, 109 L.Ed.2d 85(1990).
See also Arizona v. Hicks, 480 U.S. 321, 331, 107 S.Ct. 1149, 94
L.Ed.2d 347 (police lawfully entered respondent's apartment when a bullet
fired through the floor of the apartment struck a man in the apartment
below); Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826,
1835, 16 L.Ed.2d 908 (1966)(immediate destruction or disappearance of evidence
(warrantless taking of blood alcohol sample to test for intoxication));
State v. Gilbert, 24 Kan.App.2d 159 (1997)(domestic violence call
and reason to believe the victim and aggressor are still in the residence).

(1) the gravity or violent nature of the
offense with which the suspect is to be charged;(2) whether the suspect is reasonably
believed to be armed;(3) a clear showing of probable cause;(4) strong reasons to believe that the
suspect is in the premises;(5) a likelihood that the suspect will
escape if not swiftly apprehended; and(6) the peaceful circumstances of the
entry. United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert.
denied 439 U.S. 913 (1978), cited with approval in State v. Gilbert,
24 Kan.App.2d 159 (1997). Possible loss or destruction of evidence
is a factor to be considered. State v. Platten, 225 Kan. 764, 770,
594 P.2d 201 (1979).

The permissible scope
of an exigent circumstance search "must, at the least, be as broad as may
reasonably be necessary to prevent the dangers [which excuse the warrant]."
Warden v. Hayden, 387 U.S. 294, 298--299, 87 S.Ct. 1642, 1645--1646,
18 L.Ed.2d 782 (1967).

Consequences of Fourth Amendment Violations

Exclusion of Evidence

The exclusionary rule
is not found in the Constitution. It was created by the courts to discourage
law enforcement from conducting unconstitutional searches by depriving
them of the use of evidence so obtained. Mapp v. Ohio, 367 U.S.
643, 647, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States,
232 U.S. 383, 391-92, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Conversely, if
this purpose would not be served by suppression then the evidence should
still be admitted. Massachusetts v. Sheppard, 468 U.S. 981, 990-991,
104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

NOTE: Many inspection codes and
statutes purport to allow inspectors to make warrantless inspections and
seizures. Such provisions must be interpreted and applied consistent with
the Constitution, which requires a warrant or consent. See Price v.
City of Junction, Texas, 711 F2d. 582, 592 (1983)(ordinance allowing
abatement of junk cars on public or private property). Cf. Weaver v.
City of Topeka, et al., Shawnee County District Court Case No. 98-CV-222
(filed 3/18/99)(defendant entitled to summary judgment where he seized
five inoperable vehicles from plaintiff's property pursuant to a warrant,
even though city code did not require one).

Civil Liability

42 U.S.C. § 1983

"Every person who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress."

The statute provides only
a procedural mechanism for enforcing a right arising under the constitution
or some other federal law, not a violation of state law. As a government
inspector, virtually all your official actions are carried out "under color
of statute." These actions are "constitutional torts' and are usually filed
in federal court, although they can be brought in state district court.

In civil rights actions,
a plaintiff generally has to prove that the defendant acted pursuant to
a city policy or custom in order to hold the governmental entity liable
for damages. Although city may incur liability for single decision made
by a policymaker in certain circumstances, plaintiff did not allege that
a policymaker decided to destroy his alleged sculptures and garden. Thus,
defendants did not exceed bounds of order allowing demolition of concrete
slabs, junk and debris. Emery v. Toledo, Ohio, 178 F.3d 1294 (6th
Cir. 1999)(unpublished).